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Ignore that post below. I just started reading the actual speech in question, and it appears I’m totally wrong. It looks like she’s defending/apologizing for the government’s position in the Padilla case. Even for March of ’03, that’s egregious.

Update: Or is she? I’m perplexed. Phrase in question is–in the context of Padilla–“one can certainly justify that type of detention under precedents and current law.” And it’s in the midst of a pretty noncommittal discussion of issues raised by the WoT that will be percolating through the courts. And later, she asks “how long will we hold people without any judicial review….” she follows up with the mealy-mouthed declaration that “when I ask this question, it is not intended to suggest that either the President, Congress, or the courts have done anything unconstitutional or bad.” One thing’s for sure: if you can be this confusing and noncommittal on core constitutional questions, you’re tailor-made to make it through the confirmation process.

The Sotomayor nomination isn’t a week old yet, and I’m already bored with reading about it. I don’t see what people are so exercised about, pro or con. Yeah, I don’t like the comment about “wise Latina woman” making better decisions, and I don’t think it’s defensible (or at least I haven’t read any compelling defenses of it). Otherwise, I can’t see why this particular choice merits all the screeching. (Also, conservatives whose favorite justice is Clarence Thomas shouldn’t be heard to complain about Sotomayor’s lack of qualifications. No doubt her ethnicity was, as with Thomas, a but-for cause of her selection, but she has more experience on the bench and a more distinguished academic record than Thomas did).

The last nominee to actually be defeated — Harriett Miers was withdrawn, remember, and withdrawn due to conservative unrest — was Robert Bork. And he was a conservative choice facing a Senate with 55 Democrats. Sotomayor is a Democratic president’s nominee who will come before a Democratic Senate. She won’t be “Borked” because, where Bork began 5 votes down, she begins 10 votes up. If Bork had enjoyed 15 more easy votes, he’d be Justice Bork today.

As such, there are certain safe predictions we can make: Barring imperfect vetting on the part of the majority, the final nominee will be pro-choice. Will be sympathetic to labor. Will be sympathetic to the federal role in regulation. Will be, in sum, the sort of Justice you’d expect from a left-of-center president and a left-of-center Senate.

I don’t like any of that stuff. And Richard Epstein provides reason to believe she may be worse than the average Democratic judicial nominee on property rights. That aside, the numbers in the Senate make it clear that, no matter what, we were always going to end up with a Justice who’d make conservatives and libertarians unhappy.

But there are other areas on which the average Democratic nominee is likely to be better than the average Republican, areas like criminal procedure and executive power. In those areas, from a libertarian perspective, maintaining a 5-4 conservative/liberal balance on the Court, is a good thing. I always thought that “getting more judges like Roberts and Alito” was a lousy reason to pull the lever for the Rs in November, particularly if you care about checks on executive power.

In his terrific book Takeover, Charlie Savage suggests that there was method behind the apparent madness of the Miers nomination:

why did Bush nominate Miers? The conventional wisdom was that the fiasco was simply the result of Bush’s feckless enjoyment of the power his office gave him to reward his friends. But in fact, Miers was a sound pick by the Bush-Cheney administration on an issue about which they cared deeply: executive power. Bush needed to pick a female justice for political reasons, but executive branch experience was almost nonexistent in the resumes of the female conservative appeals court judges and state supreme court judges favored by conservative legal activists. Miers, however, could be counted on to embrace Bush’s expansive view of presidential powers.

So too with Chief Justice Roberts. Savage reviewed an enormous trove of documents prepared by Roberts when he worked in the Reagan Justice Department, and found that Roberts was an even more enthusiastic supporter of executive power than one would naturally expect to find in Reagan’s DOJ. Tasked with analyzing the Presidential Records Act, the post-Nixon reform establishing that presidential documents are the people’s property, and allowing public access to such documents, Roberts “made clear that he loathed [the Presidential Records Act], believing it to be an unconstitutional infringement on the presidency’s power to keep information secret.” Savage writes that Roberts also

pressed to expand the president’s ability to govern in secret, pushing to roll back the Federal Advisory Committee Act… [and] warn[ed] against even appearing to endorse the idea of ‘freedom of information,’ lest it be construed as suggesting that the Freedom of Information Act was a good thing. He opposed issuing any presidential documents in connection with the War Powers Resolution that were worded in such a way as to concede that Congress had a role in deciding when military hostilities could begin or end.

There’s no denying that from a libertarian/constitutionalist perspective, McCain’s prospective nominees would have been better on some issues than either Obama’s or Clinton’s. McCain’s judges would likely have been better on campaign finance reform and the thus-far fruitless effort to restore limits on Congress’s power to regulate using the Commerce Clause. Despite Roberts’s vote in the Oregon Right-to-Die case, they would probably be better on federalism, depending on whose ox is getting gored.

There is little question however, that they would have been far worse than Democratic appointees on questions like, can the president carry out a wiretapping program in defiance of federal law, and forever shield the details of that program behind the State Secrets doctrine?

As Robert Schlesinger points out, the latter issue may well end up before the Supreme Court. We don’t know where Sotomayor stands on that issue, but I’m guessing she won’t be as bad on it as another Roberts or Alito.

Since Rich Lowry, Karl Rove, and Charles Krauthammer have all admitted that Obama’s anti-terror policies are substantially the same as Bush’s, I assume they’ll refrain from arguing that Obama’s making the country less safe, and they’ll hold off on blaming him if and when there’s another terrorist attack.

My first (printable) thought when I read the story of Edmund Andrews, linked to with sympathetic comments by a number of liberal bloggers, was “If you’re paying $4K a month in child support on a journo’s salary, you can’t afford a new house for your new wife. Maybe I should cover economics for the New York Times.” But it’s probably only a matter of time before we medicalize being a deadbeat: “subprime loan addiction” or some such.

Megan McCardle has some new information that makes Andrews and his wife even less worthy of sympathy than I’d thought.

In a symposium on Culture11, I try to imagine what the candidates might say in an alternate universe where the election turned on convincing cynical libertarians with a penchant for gridlock. Here’s McCain:

McCain: My friends, let’s be honest here. It looks like we may be about to rerun the 70s: another era of stagnation and imperial decline. If we’re lucky, we’ll get some good movies out of the deal. You’ve seen what unified government can do in the hands of a nominally small government party. Elect my opponent, and you ain’t seen nothing yet. We’re entering an era of limits, where restraint is necessary. In the postwar era, unified governments have spent more than three times as fast as divided ones. And if you want divided government, I’m the only game in town. I like to compare myself to Teddy Roosevelt. But after eight years of National Greatness Conservatism run rampant, you don’t want — and the country can’t afford — a loudmouthed bellicose crusader who thinks war is a wonderful tonic for whatever ails the national spirit. In this era, the veto pen will be mightier — and more important — than the sword. And whatever glory can come from the office will be found in standing athwart the rising tide of Democratic “reform”, yelling “stop!” So my promise to you is that if elected, I’ll put aside my dreams of presidential greatness and serve a cause greater than my self interest. At one point, I longed to be another TR. But if you elect me, I promise that I’ll be another Gerry Ford.

Tonight Barack Obama and John McCain will appear together in New York to “discuss in depth their views on service and civic engagement in the post-9/11″ in a primetime forum hosted by ServiceNation, “a dynamic new coalition of 110 organizations that has a collective reach of some 100 million Americans and is dedicated to strengthening our democracy and solving problems through civic engagement and service.”

According to their website, bethechangeinc.org, ServiceNation does not support mandatory national service. Their model is a dramatically expanded version of the subsidized volunteerism so popular on both sides of the political aisle.

Starting Inauguration Day 2009–and culminating on next year’s 9/11 anniversary, they’ll be pushing in their “advocacy campaign for national service legislation.” Among the proposals they favor: “Expanding service on college campuses. Placing 1 million Americans per year in full- and part-time stipended national service by 2020.” As the website states: “This policy agenda proposes meaningful opportunities for service at every key life stage, and for every socioeconomic group, from kindergarten through the post-retirement years.”

One wonders what sort of useful “service” five-year-olds can perform in between playtime and naptime, but the point, apparently, is that “these proposals will help instill a culture of service at an early age and provide opportunities for Americans to continue serving throughout their lifetimes.”

As tonight’s event demonstrates, both parties link the call for national service to the tragedy of September 11th. In a book that you’ll buy if you love your country, I write,

Many latter-day Progressives saw 9/11 as an historic opportunity to realize William James’s vision of universal national service. National crisis brought with it the opportunity for a new politics of meaning, a chance to redirect American life in accordance with “the common good.” War was a terrible thing, of course, but war could also be “a force that gives us meaning,” as New York Times foreign correspondent Chris Hedges put it in his 2002 book lamenting the romanticization of combat….

September 11th brought the grand crusade National Greatness Conservatives had [also] hungered for. Less than a month after people jumped from the World Trade Center’s north tower to avoid burning to death, David Brooks asked, “Does anybody but me feel upbeat, and guilty about it?” “I feel upbeat because the country seems to be a better place than it was a month ago,” Brooks explained, “I feel guilty about it because I should be feeling pain and horror and anger about the recent events. But there’s so much to cheer one up.”

Seven years later, some worry that the government hasn’t done enough to unite us all behind a great crusade. At last month’s Saddleback Civil Forum on the Presidency, Pastor Rick Warren asked both candidates “what do you think is the greatest moral failure of America?” McCain’s answer was especially interesting. Was it slavery? Indian removal? Japanese internment? Nope:

I think America’s greatest moral failure has been. Throughout our existence, perhaps we have not devoted ourselves to causes greater than our self-interest, although we’ve been at the best at it of everybody in the world.

McCain continued with a backhanded dig at President Bush’s post-9/11 advice to Americans to “Do your business around the country. Fly and enjoy America’s great destination spots. Get down to Disney World in Florida.” McCain told Warren:

I think after 9/11, my friends, instead of telling people to go shopping or take a trip, we should have told Americans to join the Peace Corps, AmeriCorps, the military, expand our volunteers, expand what you’re doing — (APPLAUSE) — expand what you’re doing, expand the current missions that you are doing, that you are carrying out here in America and throughout the world, in Rwanda. And I hope we have a chance to talk about that later on.

In an October 2001 Washington Monthly article, McCain displayed what Matt Welch has called his “essentially militaristic conception of citizenship.” He praised City Year, an AmeriCorps initiative operating in 13 cities: “City Year members wear uniforms, work in teams, learn public speaking skills, and gather together for daily calisthenics, often in highly public places such as in front of city hall.” He also endorsed the National Civilian Community Corps, “a service program consciously structured along military lines,” in which enrollees “not only wear uniforms and work in teams… but actually live together in barracks on former military bases.” McCain calls for expanding these two initiatives and “spread[ing] their group-cohesion techniques to other AmeriCorps programs.” But perhaps we can take heart in McCain’s grudging admission that “it is not currently politically practicable to revive the draft.”

In any event, it’s good that ServiceNation is encouraging people to help their neighbors out. But why does that effort have to culminate in federal legislation? All too many people, Left and Right, seem to buy into David Brooks’s notion that “ultimately, American purpose can only find its voice in Washington.” According to that mindset, if a barn-raising takes place without a federal subsidy, it’s like it hasn’t really happened at all.

Americans help each other out in myriad ways everyday without expecting a government paycheck or the seal of approval from a newly minted bureaucracy. But when Americans perform charitable works outside the state, it’s awfully hard for politicians to take credit for their service.

Back in a 1979 interview with Roger Mudd, Democratic presidential contender Ted Kennedy flubbed what looked like a softball question: “Senator, why do you want to be president?” Kennedy’s sputtering answer did real damage to his campaign.

Senators Obama and McCain gave marginally more coherent answers than Kennedy when Rick Warren asked the same question at Saturday’s megachurch confab, but in an America with a saner perspective on the presidency, their answers would have been disqualifying as well.

Obama offered some touchy-feely Rawlsianism mixed with a call for bipartisanship:

You know, I remember what my mother used to tell me. I was talking to somebody a while back and I said the one time that she would get really angry with me is if she ever thought that I was being mean to somebody, or unfair to somebody. She said, imagine standing in their shoes. Imagine looking through their eyes. That basic idea of empathy, and that, I think, is what’s made America special is that notion, that everybody has got a shot. If we see somebody down and out, if we see a kid who can’t afford college, that we care for them, too.

And I want to be president because that’s the America I believe in and I feel like that American dream is slipping away. I think we are at a critical juncture. Economically, I think we are at a critical juncture. Internationally, we’ve got to make some big decisions not just for us for the next generation and we keep on putting it off. And unfortunately, our politics is broken and Washington is so broken, that we can’t bring together people of goodwill to solve these common problems. I think I have the ability to build bridges across partisan lines, racial, regional lines to get people to work on some common sense solutions to critical issues and I hope that I have the opportunity to do that.

Only the first sentence of McCain’s answer is particularly cogent, but it reflects what Matt Welch has described as McCain’s “exaltation of sacrifice over the private pursuit of happiness” :

I want to inspire a generation of Americans to serve a cause greater than their self-interest. I believe that America’s best days are ahead of us, but I also believe that we face enormous challenges, both national security and domestic, as we have found out in the last few days in the case of Georgia….

America wants hope. America wants optimism. America wants us to sit down together. I have a record of reaching across the aisle and working with the other party, and I want to do that, and I believe, as I said, that Americans feel it is time for us to put our country first.

And we may disagree on a specific issue… but I want every American to know that when I go to Gee’s Bend, Alabama, and meet the African-American women there who are so wonderful and lovely, an experience I’ll never forget, and when I go to places where I know they probably won’t vote for me, I know that my job is to tell them that I’ll be the president of every American and I’ll always put my country first.

In the original constitutional scheme, the president wasn’t supposed to be the Empath-in-Chief or a national life coach-cum-self-help guru, charged with getting us off our duffs and uniting us all behind a higher calling. He was there to faithfully execute the laws, defend the country from foreign attack, and check Congress with the veto power whenever it exceeded its constitutional bounds. The formless, boundless vision of presidential responsibility revealed in Obama and McCain’s answers shows us how dangerously far we’ve travelled from that modest, unromantic conception of the president’s role. Fortunately, I know of a book that could set them straight.

[R]hetorical—and related—excesses are inherent in the modern presidency. This is so for reasons brilliantly explored in the year’s most pertinent and sobering public affairs book, “The Cult of the Presidency: America’s Dangerous Devotion to Executive Power,” by Gene Healy of Washington’s libertarian Cato Institute.

In 1819, William Hazlitt, the great radical essayist, snarled that “Man is a toad-eating animal. The admiration of power in others is as common to man as the love of it in himself: the one makes him a tyrant, the other a slave.”

If you’re in the mood for some Hazlitt-style misanthropy, today’s Times has a fairly horrifying article about what campaign 2008 looks like, as seen from the rope line.

While campaign events are largely stage-crafted, the frenzied flesh-pressing that candidates engage in afterward offers something more raw and unpredictable. You see and hear things on rope lines. Get a whiff of things, too. (“I got to smell him, and it was awesome,” raved Kate Homrich, caught between Mr. Obama and a woman trying to hug him in Grand Rapids.)….

A lot can happen on a rope line, which make them both unnerving and unpredictable, and something of a culture unto themselves. Look at the faces — not of the candidates, but of the rope-liners themselves, with arms and fingers extended, their eyes bugged and sometimes tearful.

“Best experience of my life,” said Bonnie Owens, who got her fingers pinched by Mr. Obama after a rally in Louisville last week.

“I couldn’t believe she picked me out of a crowd,” said Jeff Justice after a rope-line encounter with Mrs. Clinton after a rally in Charleston, W.Va. Mrs. Clinton probably picked him out because he fainted in front of her. He was back on his feet after she gave him a bottle of water and, more important, she signed a photograph for him.

This sort of thing is embarrassing enough when it involves sweatsuit-clad Americans waiting outside the NBC studios, praying for a glimpse of Matt Lauer. When it involves people who aspire to power, it’s far, far worse.

Hazlitt had a lot to say about humanity’s need to anoint and venerate a leader. From my book (buy it, damn you):

In his essay “On the Spirit of Monarchy,” Hazlitt noted that, as savages, we fashioned “Gods of wood and stone and brass,” but now, thinking ourselves above superstition, “we make kings of common men, and are proud of our own handiwork.” As Hazlitt saw it, behind that impulse lies a craven desire to dominate others, even if only vicariously: “each individual would (were it in his power) be a king, a God: but as he cannot, the next best thing is to see this reflex image of his self-love, the darling passion of his breast, realized, embodied out of himself in the first object he can lay his hands on for the purpose.”

But Hazlitt wasn’t immune from the original sin he criticized. As if illustrating his own warnings about man’s tendency toward hero-worship, Hazlitt penned a hagiographic “Life of Napoleon Buonaparte” that took “a sentimental view of Caesarism.” None of us are immune. Liberty requires upon rising above the weakness of the Flesh, resisting our temptation to worship Power, fighting it with a political culture that contains healthy doses of scorn and irreverence.

“Bonnie Owens,” “Jeff Justice,” and the like would no doubt resent that perspective, but as Hazlitt wrote in one of his better moments:

“Would it not be hard upon a little girl, who is busy in dressing up a favorite doll, to pull it in pieces before her face in order to show her the bits of wood, the wool, and rags it is composed of? So it would be hard upon that great baby, the world, to take any of its idols to pieces, and show that they are nothing but painted wood. Neither of them would thank you, but consider the offer as in insult.”

I write a little bit about Kirk in the section of the book labeled “How Conservatives Learned to Stop Worrying and Love the Imperial Presidency.” Kirk, to his credit, was never really able to stop worrying. Search his name on the Heritage Foundation website and you’ll find some stuff that would get Sean Hannity and Rush Limbaugh to cry treason. Here’s Kirk in the wake of Gulf War I:

it would be ruinous for the Republicans to convert themselves into a party of high deeds in distant lands and higher taxes on the home front. Such a New World Order, like the Pax Romana, might create a wilderness and call it peace; at best, it would reduce the chocolate ration from thirty grams to twenty. And in the fullness of time, the angry peoples of the world would pull down the American Empire, despite its military ingenuity and its protestations of kindness and gentleness — even as the Soviet Empire is being pulled down today, thanks be to God.

The conservative endeavors to so limit and balance political power that anarchy or tyranny may not arise. in every age, nevertheless, men and women are tempted to overthrow the limitations upon power, for the sake of some fancied temporary advantage. It is characteristic of the radical that he thinks of power as a force for good–so long as the power falls into his hands. In the name of liberty, the French and Russian revolutionaries abolished the old restraints upon power; but power cannot be abolished; it always finds its way into someone’s hands. That power which the revolutionaries had thought oppressive in the hands of the old regime became many times as tyrannical in the hands of the radical new masters of the state.

Knowing human nature for a mixture of good and evil, the conservative does not put his trust in mere benevolence. Constitutional restrictions, political checks and balances, adequate enforcement of the laws, the old intricate web-of restraints upon will and appetite–these the conservative approves as instruments of freedom and order.

Man, remember conservatives? They used to believe stuff like that. Some of them still do, but they’re few and far between. Today Heritage’s Russell Kirk lecture goes to the likes of John Yoo. Seriously.

(Or none). In “The Autumn of the Multitaskers,” Walter Kirn explains why the only time I really seem to get anything done anymore is when I’m crammed into a tiny coach seat, forbidden to use electronic devices, and faced with the choice between doing some work and watching a Katherine Heigl movie.

Multitasking messes with the brain in several ways. At the most basic level, the mental balancing acts that it requires—the constant switching and pivoting—energize regions of the brain that specialize in visual processing and physical coordination and simultaneously appear to shortchange some of the higher areas related to memory and learning. We concentrate on the act of concentration at the expense of whatever it is that we’re supposed to be concentrating on.

What does this mean in practice? Consider a recent experiment at UCLA, where researchers asked a group of 20-somethings to sort index cards in two trials, once in silence and once while simultaneously listening for specific tones in a series of randomly presented sounds. The subjects’ brains coped with the additional task by shifting responsibility from the hippocampus—which stores and recalls information—to the striatum, which takes care of rote, repetitive activities. Thanks to this switch, the subjects managed to sort the cards just as well with the musical distraction—but they had a much harder time remembering what, exactly, they’d been sorting once the experiment was over.

Even worse, certain studies find that multitasking boosts the level of stress-related hormones such as cortisol and adrenaline and wears down our systems through biochemical friction, prematurely aging us. In the short term, the confusion, fatigue, and chaos merely hamper our ability to focus and analyze, but in the long term, they may cause it to atrophy.

The next generation, presumably, is the hardest-hit. They’re the ones way out there on the cutting edge of the multitasking revolution, texting and instant messaging each other while they download music to their iPod and update their Facebook page and complete a homework assignment and keep an eye on the episode of The Hills flickering on a nearby television. (A recent study from the Kaiser Family Foundation found that 53 percent of students in grades seven through 12 report consuming some other form of media while watching television; 58 percent multitask while reading; 62 percent while using the computer; and 63 percent while listening to music. “I get bored if it’s not all going at once,” said a 17-year-old quoted in the study.) They’re the ones whose still-maturing brains are being shaped to process information rather than understand or even remember it.

This is the great irony of multitasking—that its overall goal, getting more done in less time, turns out to be chimerical. In reality, multitasking slows our thinking. It forces us to chop competing tasks into pieces, set them in different piles, then hunt for the pile we’re interested in, pick up its pieces, review the rules for putting the pieces back together, and then attempt to do so, often quite awkwardly.

Speaking of flying/multitasking: about a week ago, I was in the bathroom at the Seattle-Tacoma Airport, when a guy comes in quacking away on his bluetooth device, sidles right up next to me at the urinal, and continues talking (apparently to an assistant/employee) about an upcoming meeting, treating his associate to a cascading liquid symphony punctuated by autoflushes.

I really like Portland–it’s the perfect-sized city, the surroundings are beautiful, and so are a lot of the buildings. I’m staying in this super-cool hotel built in 1911 that has a “film classics” motif. Lana Turner is on my keycard. The light-rail is awesome since I didn’t have to pay for it (a guy I met last night called it something like “a multibillion dollar choo-choo for hipsters.”) But unless I’m walking all the wrong places, the city really seems to have a dearth of street-level retail. I don’t know what the explanation for that is. There are plenty of liberal cities with bustling commerce. But you go whole blocks downtown here where there’s nothing to buy. Gripped by man’s primal need for a New York Times, I walked for about 40 minutes this morning before I found a place that had it.

Welcome. This is the personal website of Gene Healy, a recovering lawyer and policy analyst in Washington D.C., and the author of The Cult of the Presidency: America's Dangerous Devotion to Executive Power. More»